Kim Davis Case Argued at Court of Appeals

Jan 31, 2019

Liberty Counsel presents oral argument today in the U.S. Sixth Circuit Court of Appeals on behalf of former Rowan County Kentucky Clerk Kim Davis. The cases of Ermold v. Davis, Yates v. Davis, and Miller v. Davis center on whether the plaintiffs are entitled to attorney fees and/or damages, and, if so, whether the Commonwealth, Rowan County, or Kim Davis is liable for payment.

The plaintiffs in the Ermold and Yates cases received marriage licenses in 2015 while Kim Davis spent six days in jail for refusing to violate her conscience by issuing marriage licenses to same-sex couples under her name and authority. Not content with their licenses or Davis’ sacrifice, the plaintiffs chose to try and punish Davis financially and to force an “all or nothing” choice between same-sex “marriage” and religious liberty, without any reasonable accommodation.

The Ermold and Yates cases were dismissed in 2016, along with the original 2015 marriage license case of Miller v. Davis, because Kentucky’s Governor Matt Bevin and the general assembly acted to permanently change Kentucky’s marriage licensing laws to protect the religious liberty of Davis and other county clerks. But Ermold and Yates were reinstated following an appeal. The lower court ruled Davis cannot be liable for damages in her official capacity but allowed the case to proceed against her individually. To succeed, Ermold and Yates would have to show that Davis violated a clearly established law. Since Davis requested a religious accommodation (which had never before been litigated and was later provided by Governor Bevin and the legislature), she would not have violated a clearly established law. 

The brief of the Commonwealth of Kentucky, Rowan County, and Davis argue that the plaintiffs are not entitled to attorney’s fees because the plaintiffs did not receive permanent relief, and their case was mooted by Gov. Bevin’s Executive Order and the legislature. Davis and Rowan County argue alternatively that if the plaintiffs are entitled to fees, the Commonwealth should pay them. The Commonwealth brief argues if fees are due, Rowan County should pay them.

But the Commonwealth of Kentucky never appeared below to argue what it now argues for the first time on appeal. Thus, the Commonwealth cannot complain for the first time to the Court of Appeals. Its argument is barred. Moreover, marriage is regulated statewide and it would set a bad precedent to allow the former Governor Steven Beshear to violate religious freedom rights of elected officials and staff without offering a reasonable accommodation and then make a county liable for the former governor’s violation of the law. Gov. Bevin and the general assembly did the right thing by protecting the religious liberty of all county clerks and staff.

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